Georgia recently enacted the Illegal Immigration Reform and Enforcement Act of 2011 (IIREA) (formerly Georgia HB 87). The purpose of this advisory is to assist Georgia employers in understanding their obligations under IIREA, and it focuses on the most significant portion of IIREA for Georgia employers—the section requiring certain private businesses to use the federal database called E-Verify—while briefly touching on several other relevant elements of the new law.

E-Verify is an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA). The service allows employers to enter information regarding newly hired employees into the online database and receive confirmation that a person is or is not authorized to work in the United States. Since IIREA will eventually require all employers in Georgia with more than 10 employees to use E-Verify for new hires, a summary of the E-Verify process will prove useful.

E-Verify 101

The first step in using E-Verify is to enroll. Enrollment involves entering into a Memorandum of Understanding (MOU) with USCIS. The MOU is a non-negotiable form document outlining the rules and procedures of E-Verify, and it is available on the USCIS website. Enrollment takes only a few minutes, and the MOU can be signed electronically during the online enrollment process.

Once enrolled, employers must begin using E-Verify for all new hires. E-Verify operates in tandem with the traditional I-9 process and does not replace the employer’s need to retain completed I-9 forms. After completing the I-9, the employer must input the employee’s I-9 data into the online E-Verify system. This must be done within three days of hiring a new employee.

Generally within seconds of submitting the I-9 data, the employer will receive either a confirmation, a tentative nonconfirmation (TNC) or a Department of Homeland Security (DHS) verification notification. A confirmation indicates that the employee is authorized to work, and the employer can close the E-Verify case at this point. Similarly, a DHS notification requires no further employer action. If a TNC is issued, however, the employer must take additional steps.

In the event of a TNC, the employer must notify the employee as soon as possible. E-Verify provides a notification form. The employee may then decide whether or not to contest the TNC and should sign the notice form. If the employee does not contest the TNC, the employer may close the E-Verify case and may terminate the employee with no civil or criminal liability.

If the employee decides to contest the TNC, the employer must not terminate the employee while the case is outstanding. The employee should be referred to the SSA, where the employee then has eight business days to contest the TNC. When this is finished, the SSA will either issue a confirmation or a final nonconfirmation (FNC). Either response allows the employer to close the case, and an FNC allows the employer to terminate the employee with no civil or criminal liability. In some instances, the SSA will refer the case to the DHS, and in those circumstances, the employer will be notified of additional steps to be taken.

The final step is to resolve and close the case in the E-Verify system by filling out the online form and indicating the results. This is used for statistical and enforcement purposes by E-Verify.

Top Five E-Verify Pitfalls

There are several mistakes that employers (particularly first-time users) are likely to make when using E-Verify. Here are five mistakes to avoid:

  1. Forgetting to follow standard I-9 procedures. Remember that E-Verify is no substitute for maintaining your I-9 form, and you can still be subject to fines for failure to complete and maintain I-9 forms as required.
  2. Using E-Verify as a screening tool. It is forbidden to use E-Verify to screen potential hires. You may only open an E-Verify case for someone you have actually hired.
  3. Failure to terminate after an FNC. E-Verify shares its information with Immigration and Customs Enforcement (ICE), and if you fail to terminate an employee (and indicate this in the case resolution), it is highly likely that an ICE officer may contact you to audit your employment compliance.
  4. Failure to close your E-Verify case. This is an important step in the process, and it is easy to overlook.
  5. Using E-Verify on existing employees. This is not allowed unless your company is a contractor with the federal government and your federal contract has specific language requiring verification of existing employees. Therefore, to ensure a case has been closed, the employer must follow E-Verify prompts to close the case affirmatively.

IIREA E-Verify Timeline

IIREA has a staggered application date for employers of different sizes. For employers with 500 or more fulltime employees, E-Verify is required by January 1, 2012. For employers with between 100 and 499 full-time employees, E-Verify is required as of July 1, 2012. For employers with between 10 and 99 full time employees, it is required effective July 1, 2013. For employers with fewer than 10 full-time employees, E-Verify is not required under IIREA.

While it is possible that the constitutionality of some parts of IIREA may be challenged in court, until any such cases are resolved, employers should expect to comply by the dates indicated above. Additional information is available at www.uscis.gov.

Other IIREA Issues

In addition to E-Verify, IIREA has other implications for Georgia employers. Particularly significant are the harboring and transportation provisions of IIREA Section 7. Section 7 makes it a crime to transport or harbor a person known to be an illegal alien. The definitions of harboring and transportation are broad enough to include an employer who provides housing or transportation to its employees. For example, an agricultural employer that provides barracks for farm workers, or any employer that operates a shuttle service, could be within the scope of Section 7’s harboring and transportation provisions.

In spite of this broad language, IIREA will probably not subject many Georgia employers to criminal sanctions. First, in order to trigger the crimes of harboring or transportation, the act of harboring or transportation must occur in connection with the commission of a separate crime. The law is unclear, however, as to what separate crimes can trigger Section 7 liability, so employers would be wise to ensure that they avoid violation of any criminal statutes, including traffic laws. Employers should also have a policy in place regarding how to react if they suspect an employee is violating any state or federal criminal law.

Secondly, and more importantly, law requires the employer to have knowledge that the employee has been verified by the federal government as being present in the United States in violation of federal immigration law. This high level of knowledge goes beyond mere suspicion. Even certain knowledge that the employee is using false documents or a stolen identity will probably not be enough to give rise to the level of knowledge necessary to trigger IIREA transportation or harboring liability.

Again, employers would be wise to develop policies of how they will act when they suspect someone of violating any law, state or federal. By implementing a sound policy and plan of action, employers can reduce their risk of inadvertently violating any law.

Conclusion

As you can see, IIREA will affect most Georgia employers. The best thing your business can do to prepare for compliance is to familiarize yourself with E-Verify and get ready to use it. The deadlines for compliance are coming soon, so use this time to familiarize yourself with what will be required. Adequate materials are available online, or you can consult an immigration professional with additional questions. Additionally, a review of your company policies may be in order to ensure that all employees know how to avoid violating any state or federal criminal statutes. These two measures are your company’s best practice to ensure that IIREA does not adversely affect your business.